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Federal Communications Commission Chair Kevin Martin has gotten a tongue-lashing from Comcast following Martin's public response to the news that the cable giant and BitTorrent will work together on peer-to-peer management problems.

"Your response was perplexing," Comcast vice president David Cohen wrote to the FCC. "It repeated erroneous characterizations of Comcast's network management practices and disclosure policies that we have taken great pains to clarify on multiple occasions."

Meanwhile, Vuze has also filed with the Commission, warning that whatever arrangements Comcast and BitTorrent make, the agency still has to set rules for network operations in general.

"Contrary to your press statement . . . "

Shortly after Comcast and BitTorrent announced "a collaborative effort with one another" last Thursday, all five FCC Commissioners issued responses. Martin's declared that he was "pleased that Comcast has reversed course and agreed that it is not a reasonable network management practice to arbitrarily block certain applications on its network." He also praised the company for "admitting publicly that it was engaging in the practice and now engaging in a dialogue with BitTorrent."

But, Martin added, he saw no evidence in the announcement that Comcast will mend its ways in the short term. Comcast's statement disclosed that the ISP will migrate to a "protocol agnostic" network management system by "year-end 2008." Martin found no solace in this promise. It appears, he wrote, that Comcast's discriminatory practices "will continue throughout the country until the end of the year and in some markets, even longer." The company should commit to a specific date when it will stop, Martin advised. He also warned that the Commission would "remain vigilant in ensuring that consumers have the ability to access the lawful content of their choice on the Internet."

Cohen's reply came a day later, expressing "disappointment" at Martin's comments. "We have received overwhelmingly positive feedback about this announcement from the Internet community, government officials, and many experts and bloggers," Cohen wrote to the FCC on March 28th. The letter reiterated what Cohen told all five Commissioners at the agency's February 25th hearing on ISP practices, held at Harvard Law School; Comcast does not actually discriminate. "Comcast engages in minimally intrusive reasonable network management practices that occasionally delay some unidirectional P2P uploads (not downloads, and not uploads that occur while a download is in progress) only when necessary to prevent network congestion."

Each paragraph of Cohen's response to Martin opened with, "Contrary to your press statement..." Comcast has not "'admitted' anything," Cohen insisted. The company has provided a "full and honest accounting" of its network management practices. In fact, Cohen wrote, when the controversy first erupted last year, "Comcast readily acknowledged that some P2P uploads are occasionally delayed and, since then, we have updated our customer disclosures to make crystal clear exactly what we are doing to manage our network and why."

As for Comcast's "protocol agnostic" time line: ""We just cannot turn off our current system overnight and put our customers at risk of network congestion," Cohen concluded. "For the benefit of all of our customers, it is essential that the migration be appropriately timed."

Some of this just comes down to semantics. Martin's stance on "blocking" seems to refer to Comcast's own FCC filings, which, as Ars has disclosed, acknowledge that the company inserts TCP reset packets into streams to handle what its networks experience as bandwidth overloads. "A 'reset' is nothing more than a bit in the TCP packet header that is used to signal that there is an error condition within the network and that a new connection needs to be established," Comcast told the FCC on February 12th. Is that blocking, or "network management"?

Martin may also have been thinking of Cohen's debate at Harvard with net neutrality advocate Timothy Wu, during which Cohen also insisted that Comcast does not block BitTorrent streams when the P2P protocol is used "as designed to be used." Wu cited this as evidence of protocol interference."There a single fact here [Comcast] they cannot deny," the Columbia law professor explained, "which is that the Associated Press and EFF [the Electronic Frontier Foundation], which are users of the Internet, sought to use an application a certain way, and they were blocked... Now he's saying that they weren't using the Internet in the 'right way.' They weren't using these applications in the 'right way.' Well, the whole problem is that Comcast shouldn't be telling people how they're supposed to use applications."

Vuze: net neutrality probe should continue

Yesterday, Vuze, which petitioned the FCC for its network management practices proceeding, met with a Commissioner to insist that the game is not over because of the Comcast/BitTorrent announcement. An agreement "between one network operator and one online content company," was how Vuze characterized the deal in a meeting with Deborah Taylor Tate and the agency's Wireline Competition Bureau staff.

This discord will doubtless further play out at the FCC's next public hearing on the controversy, scheduled to take place at Stanford University on April 17th—an event that will allow the Commission "to explore more fully what constitutes reasonable network management practices," as Martin put it in his press release.

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Matthew Lasar
Matt writes for Ars Technica about media/technology history, intellectual property, the FCC, or the Internet in general. He teaches United States history and politics at the University of California at Santa Cruz. Emailmatthew.lasar@arstechnica.com//Twitter@matthewlasar